Yoo to Conservatives: Reverse Course

The latest issue of the National Review has an article by Berkeley law prof John Yoo that invites serious thought and discussion—very serious thought. Here’s the gist:

In the Reagan era, conservatives stood for a “unitary executive” and White House control over administrative agencies (administered through OMB’s OIRA); and for judicial deference to administrative agencies (Chevron deference became near-totemic). Congress was the enemy—the engine of government run amok. Conservatives, John Yoo says, should now “mov[e] beyond” those commitments. What he’s actually urging is a broad-scale reversal: Ditch judicial deference. Re-examine INS v. Chadha, which declared the legislative veto unconstitutional (and which conservatives at the time celebrated as a rousing victory). Re-embrace Lochner—the epitome of “the idea of natural rights that actually informed the Framing.” And, get the institutional landscape right:

Conservatives have correctly shared the Founders’ fear of excessive lawmaking, but they have focused on the wrong source: Congress. They should shift their aim to the administrative agencies, which are the greatest threat to our liberties today.

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A Superfluous Congress

There is not the slightest constitutional pretext for deferring enforcement of unworkable provisions of the Affordable Care Act. By all accounts it is reasonable policy to do so. But the constitutional precedent is profoundly troubling. Congress’ craven capitulation to it is even more so.

No one has noticed in the present case because Congress and the President seem generally to agree on this course. Republicans do not want the law enforced at all, and most Democrats appear to concur in President Obama’s conclusion that more time is needed before certain parts of it should be enforced.

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